Citation Nr: 21024250 Decision Date: 04/22/21 Archive Date: 04/22/21 DOCKET NO. 14-20 746A DATE: April 22, 2021 ORDER Entitlement to a separate 10 percent rating, but no higher, for left knee instability, effective September 1, 2011, but no earlier, is granted. FINDINGS OF FACT 1. Effective September 1, 2011, the Veteran’s left knee instability was manifested by pain and giving away. 2. Effective September 1, 2011, the evidence of record shows slight left knee lateral instability. CONCLUSIONS OF LAW The criteria for a separate 10 percent rating, but not higher, for slight left knee instability, effective September 27, 2012, but not earlier, have been met. 38U.S.C. §1155 ;38C.F.R. §4.71a, Diagnostic Code (DC) 5257. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1978 through December 1984. This matter comes before the Board of Veterans’ Appeals (BVA or Board) on appeal from a January 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). That rating continued the single 10 percent evaluation for the left knee disability. The Veteran appealed the rating. The Board remanded it in March 2018 for additional development. In a January 2020 decision, the Board denied entitlement to an initial rating in excess of 10 percent from April 5, 2016, for instability of the left knee. The Veteran appealed to the United States Court of Appeals for Veterans Claims (Court). In November 2020, the parties agreed to a Joint Motion for Partial Remand (JMPR), and the Court issued an order to vacate the January 2020 Board decision and remanded the issue of entitlement to a compensable evaluation for left knee instability prior to April 5, 2016 back to the Board for further consideration as consistent with the JMPR. The appeal has since returned to the Board. Entitlement to a separate 10 percent rating, but no higher, for a left knee instability, effective September 1, 2011, but no earlier, is granted. The Veteran contends that he is entitled to a compensable rating for left knee instability prior to April 5, 2016. His claim has been pending since an April 2011 claim for an increased rating. Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. It is essential that the examination on which ratings are based adequately portrays the anatomical damage, and the functional loss, with respect to these elements. In addition, the regulations state that the functional loss may be due to pain, supported by adequate pathology and evidenced by the visible behavior of the veteran undertaking the motion. Weakness is as important as limitation of motion, and a part which becomes painful on use must be regarded as seriously disabled. 38C.F.R. §4.40. When rating the joints, inquiry will be directed as to whether there is less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement.38C.F.R. §4.45. The intent of the schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. It is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38C.F.R. §4.59. The rating of the same disability under different diagnostic codes, known as pyramiding, must be avoided. However, separate ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not duplicative of the symptomatology of the other condition. 38C.F.R. §4.14; Esteban v. Brown,6 Vet. App. 259 (1994). Normal range of motion of the knee is to 0 degrees extension and to 140 degrees flexion.38C.F.R. §4.71a, Plate II. Diagnostic Code 5257 provides that a 10 percent rating is warranted for slight recurrent subluxation or lateral instability of a knee. A 20 percent rating is warranted for moderate recurrent subluxation or lateral instability. A 30 percent rating is warranted for severe knee impairment with recurrent subluxation or lateral instability. 38C.F.R. §4.71a, Diagnostic Code 5257. Subluxation of the patella is the incomplete or partial dislocation of the knee cap. Rykhus v. Brown,6 Vet. App. 354 (1993). Separate ratings may be assigned for compensable limitation of both flexion and extension, or for limitation of motion and instability or subluxation of the knee, or meniscal pathology. However, a separate rating can only be assigned where additional compensable symptomatology is shown that is not duplicative of that used to assign another rating.38C.F.R. §4.14 ; VAOPGCPREC 09-04 (2004), 69Fed. Reg. 59990 (2004);VAOPGCPREC 23-97 (1997),62 Fed. Reg. 63604 (1997); VAOPGCPREC 9-98 (1998),63 Fed. Reg. 56704 (1998); Lichtenfels v. Derwinski, 1 Vet. App. 484 (1991). Turning to the evidence of record, the Veteran was first service connected for left knee degenerative joint disease under DC 5003-5261 for limitation of extension, effective June 30, 2009. At a May 2010 VA examination of the knees, the Veteran indicated that he had weakness, swelling, lack of endurance, fatigability, and tenderness of the bilateral knees. However, he denied locking, give away, effusion, subluxation, and dislocation of the knees. His joint stability testing was normal. At a May 2010 VA examination, similar findings were noted. Specifically, the Veteran again denied give away, locking, subluxation, or dislocation. An examination confirmed the absence of instability, locking, or subluxation in the left knee. By September 2011, a VA examination documented the Veteran’s complaint of weakness, stiffness, heat, and give away in his left knee. He endorsed difficulty with standing and walking. Upon examination, joint stability testing was normal. In April 2016, a VA examination documented left knee slight lateral instability. Here, joint stability testing of the knee was positive. Medial and lateral instability was measured as 1+, between 0-5 millimeters. The Board finds that a separate 10 percent rating under Diagnostic Code 5257 for slight recurrent knee lateral instability is warranted for the right knee disability, effective September 1, 2011, the date the record first documented evidence of instability. As there is lay evidence that the Veteran’s left knee showed symptoms of give way weakness, the Board will resolve reasonable doubt in favor of the Veteran and find that slight recurrent lateral instability is shown to warrant a 10 percent rating under Diagnostic Code 5257. However, the evidence does not show more than occasional giving way or any symptoms that would lead the Board to conclude that any recurrent lateral instability has been any more than slight. Specifically, the Veteran did not complain of recurrent left knee locking, falls, or persistently limiting instability. Rather, joint stability testing of the left knee was normal up until April 2016. The Board finds that the preponderance of the evidence is against a finding of more than slight instability as objective signs or indicators of instability have not been found on examination, that would warrant a finding of more than slight recurrent lateral instability. The Board finds that the preponderance of the evidence is against the assignment of any rating higher than 10 percent or any earlier effective date, prior to September 1, 2011, for the separate rating. Bethany L. Buck Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board N.B. Mmeje, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.